ISLAMABAD: The Islamabad High Court (IHC), Wednesday, granted bail to Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan in the 190 million UK pound case.
A division bench of Chief Justice Aamer Farooq and Justice Tariq Mehmood Jahangiri announced the verdict which it had reserved earlier after both sides had concluded their arguments in Imran’s bail plea.
Special Prosecutor Amjad Pervez presented his arguments on behalf of the National Accountability Bureau (NAB) while Sardar Latif Khosa advocate appeared before the court as the counsel of Imran.
In its written judgment, the bench noted the instant petition is allowed and the petitioner is admitted to bail after arrest in the reference subject to furnishing bail bonds in the sum of Rs1 million with two sureties in the like amount to the satisfaction of the learned trial court.
It added, “It is pertinent to state that observations made are tentative in nature and shall not prejudice the trial Court in any manner while deciding the reference against the petitioner.”
The bench also observed that the amount transmitted from the United Kingdom to Pakistan is not £190 million, but after deduction is approximately £171.15 million and the legal framework agreement which witnesses transaction between the family of Malik Riaz Hussain and NCA, UK is not on record but the government of Pakistan was made to sign the deed of confidentiality which was executed on 06.11.2019 but its sanction was obtained on 03.12.2019 and the sanction does not provide for retrospective approval or rectification of the act.
It stated that the special prosecutor appearing for NAB was right in saying that money ought to have been transferred in the Government of Pakistan accounts rather than for settlement of liability of Bahria Town (Pvt) Limited in the sum of Rs460 billion inasmuch as there are various provision under the United Nations Charter for Prevention of Corruption which says that the proceeds from the crimes are to be remitted to the States.
The IHC verdict said that in the world of transparency, it is surprising that money received from aboard which was either laundered or illegally transferred was kept hidden from the public of Pakistan. However, the prosecution needs to connect the exercise of authority with the gratification to make out case under section 9(a)(i) and (iv) of the Ordinance.
The court said before making tentative observations as to the said aspect of the matter, it is pertinent to observe that the trial has commenced and perhaps evidence of more than half of the witnesses stand recorded. In such state of affairs, the law as it stands viz the jurisdiction of this Court to delve into the evidence and give findings on the merits of the matter was dealt by the Supreme Court of Pakistan in Khalid Javed Gillani versus The State (PLD 1978 SC 256).
In the referred case, the Supreme Court observed that the power conferred under section 497 CrPC is not an arbitrary power; it is to be exercised by reference to the material placed before the Court.
It was also observed that no judge can be satisfied even prime facie with the evidence produced by the prosecution does not lead to inference of guilt against the accused unless he made tentative assessment of the material produced before him.
It also said that in Amir versus the State (PLD 1972 SC 277), the Supreme Court observed that benefit, if any, must go to the accused at bail stage and the prosecution evidence should not be stretched beyond proportion.
Similar view about the liberty of an individual and onus being on the prosecution to place on record the material showing connectivity of the accused with the commission of the offence were laid down in the case titled, Manzoor versus the State (PLD 1972 SC 81). There is ample case law on the subject that where there is scope of further inquiry into the guilt of the accused, bail is to be allowed.
It mentioned that to the contrary, Amjad Pervez, ASC, appearing on behalf of NAB, argued that once trial has commenced and is at advanced stage, remedy of bail is generally not to be granted.
He said that in the instant matter, since the evidence of more than half of the witnesses have been recorded, it would be appropriate that a direction be issued to the learned Trial Court instead of deciding the bail on merit as any finding handed down by this Court at this stage might prejudice the case of the prosecution or defence.
The bench also said there is no cavil with principles laid down in the case law cited by both sides, however, in Manzoor versus the State (PLD 1972 SC 81) supra, the Supreme Court of Pakistan observed that where trial has commenced, bail ought not be decided on merit, is not a legal principle but is something based on practice.
It maintained that there is no established principle of law that where trial has commenced and even is at advanced stage, this Court is barred to adjudicate the bail on merit, however, the Courts while doing so ought not delve into the merits of the matter deeply lest it might prejudice the case of any side.
The IHC bench said, “Keeping in view the principles, this Court is mindful of the fact that it cannot go in deeper appreciation of the matter and is to make only tentative prime facie assessment of the evidence as discretion while deciding the bail cannot be exercised arbitrarily or at the whims of the Court but obviously on the merits as are apparent from the available record.”
“As noted above, case of the prosecution is that gratification was received by the petitioner by way of land in Sohawa which eventually was transferred to the Trust of which the petitioner is a settlor/writer/chairman and trustee alongwith donation of Rs280 million and further allotment of land measuring approximately 240 kanalsin Mouza Mohri Noor, Islamabad in favour of Farhat Shahzadi.
The concept of ‘gratification’ is elaborated in section 161 read with section 165 PPC and also is part of the corruption and corrupt practices as provided in section 9(a) (i) of the Ordinance. The word ‘gratification’ as defined and explained in section 161 is that the same is not restricted to pecuniary gratifications or to gratifications estimable in money,” maintained the court.
It continued, “Section 9(a)(i) of the Ordinance does provide for receipt of gratification directly or indirectly. In view of the referred concept, evidence available on record so far by way of testimony of Muhammad Zahid (PW-5), Chief Financial Officer of Al-Qadir University Project Trust makes the case against the petitioner one of further inquiry. Not much should be said about this testimony inasmuch as recording of evidence of the prosecution is underway and deeper appreciation of the evidence at this stage is not warranted.”
The bench stated that it is the trial court which is to see on the basis of available evidence holistically whether directly or indirectly any gratification was received by the petitioner for according approval of money to be transferred in the accounts of Registrar, Supreme Court of Pakistan for settlement of liability of Rs460 billion by Bahria Town (Pvt) Limited.
It is also an admitted position that investigation in the matter stands completed and continued incarceration of the petitioner would not serve any purpose, though the prosecution has expressed apprehension that the petitioner might temper with record or influence the trial being a political person, however, there is nothing on record which justify the referred apprehension.
Copyright Business Recorder, 2024
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